Vol.29, No.3, Summer1997

The Urban Lawyer,Vol. 29, No. 3, Summer 1997

Publication Date: September 19, 1997

Recent Developments in Land Use, Planning and Zoning Law

Edward J. Sullivan & Thomas G. Pelham, The Evolving Role of the Comprehensive Plan, 29 Urb. Law. 363 (1997).During the past year, state courts have decided a significant number of cases involving the role of the comprehensive plan. By comparison, few, if any, court decisions have been rendered which involved significant growth management issues other than the legal status of the comprehensive plan. Accordingly, this report focuses on the continuing evolution of the role of the comprehensive plan.

Alan Weinstein, Land Use and the First Amendment, 29 Urb. Law. 387 (1997).The past year saw no cessation in cases reporting on the conflicts that arise when local land-use regulation is applied to uses claiming protection under the First Amendment. This report highlights the major development in this area the U.S. Supreme Court's pending decision on the constitutionality of the Religious Freedom Restoration Act of 1993 and also discusses other cases involving regulation of religious institutions, adult businesses, and signs.

Larry J. Smith, Mary Massaron Ross, Robert D. Pritt, Brian Woram, John Witt & Terrence Scott Welch, Gated Communities: Private Solution or Public Dilemma?, 29 Urb. Law. 413 (1997).The buzz word in local government circles these days is "privatization." A predominant theme is that the private sector can do it better, or at least cheaper. As fear of crime escalates and confidence in the protective shield of local police forces erodes, more and more Americans are relocating behind the walls of private, gated communities. But are these "private" communities, with their private roads, private security forces, and private governments, merely another positive step on the transfer of power from an ineffective public sector to efficient private operators, or do they foreshadow the beginning of the end of America's cities? This report outlines the issues on both sides of the debate and then look briefly at the debate in several specific areas around the country.

Jonathan Davidson & Adam U. Lindgren, Exactions and Impact Fees Nollan/Dolan: Show Me the Findings, 29 Urb. Law. 427 (1997).In decisions from May 1996 through April 1997, federal and state courts continued to explore the meaning of the Nollan/Dolan takings test and its applicability to development fees and exactions. This year, some courts have interpreted the Dolan prong of this test to allow intense scrutiny of local findings, and remands if findings and conclusions are unfounded. Further, decisions including Homebuilders Association v. City of Scottsdale, by the Arizona Supreme Court, show growing support for a test for determining when Nollan/Dolan applies to development fees. Overall, these cases suggest that prudent local governments should prepare a detailed and accurate record to support development exactions that may be challenged under the Nollan/Dolan test.

Gregory G. Brooker & Karen R. Cole, Automatic Approval Statutes: Escape Hatches and Pitfalls, 29 Urb. Law. 439 (1997).Automatic approval of applications, when that is unintended, can result in unwise land-use decisions that may adversely affect neighboring landowners and the community. Inadvertent automatic approvals also may deny the governmental body the opportunity to impose conditions on an approval that may mitigate adverse effects. This article identifies some pitfalls for government bodies to avoid under automatic approval statutes and explores some escape hatches that allow governmental bodies to escape from some of the adverse effects of the statutes. The article makes some recommendations on the handling of applications under such statutes.

Wayne Beyer, Police Misconduct: Defenses Not Reaching the Merits Under 42 U.S.C. 1983, 29 Urb. Law. 475 (1997).This article is devoted to defenses that are procedural rather than substantive in nature, since they do not reach the merits of the plaintiff's 42 U.S.C. 1983 suit. These are affirmative defenses under Fed. R. Civ. P. 8(c) that should be raised in the defendants' answer to the plaintiff's complaint. Many cases in which nonmerits defenses are raised are susceptible to early disposition, on either a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a motion for summary judgment under Fed. R. Civ. P. 56(c). In other instances, merits consideration will merely be deferred while collateral proceedings, usually underlying criminal charges, are resolved.

Thomas W. Kelty, Federalism: While the Stewards Slept . . . New York v. United States, 29 Urb. Law. 529 (1997).Perhaps nothing has generated more thought provoking legal debate in the last twenty years than the subject of federal-local relations in the context of the Tenth Amendment. Throughout the United States, municipal attorneys have been attempting to educate locally elected officials that the truly fundamental issue in this debate is not whether a law passed by Congress is a legal mandate but, rather, whether the law itself is constitutional or, in the alternative, exceeds the scope of the Tenth Amendment as defined by New York and its progeny. Their efforts are in large part due to the work and commitment of the International Municipal Lawyers Association (IMLA) whose lawyer members represent thousands of local government units throughout the country. In 1993, IMLA created its Standing Committee on Federalism. The fruits of its work are largely reflected in the balance of this article.

Gianni Troester, Comment: Environmental Justice in EPA Region VII: A Closer Look, 29 Urb. Law. 579 (1997).In 1993, EPA Region VII began conducting an environmental equity screening of its four-state region. The screening, which analyzed the distribution of hazardous waste and Superfund ("an abandoned site containing hazardous wastes for which ownership is unclear or unknown") facilities in relation to minority and low-income communities, provides a good starting point for discussing environmental justice in Region VII. Part II of this article looks at Region VII's ongoing environmental justice analysis and discusses the data included in the screening and what they may mean and what they may not mean. Part III examines the region's plans for the future, the goals of some regional grassroots environmental groups, and the gap between the two.

Jan van Weesep, Comment: A Perspective on Housing Privatization in Eastern Europe, 29 Urb. Law. 595 (1997).This article looks at the changes wrought to the housing systems in Eastern Europe since the profound political changes in the late 1980s. From largely government-controlled systems, they have become modeled on an extreme concept of market. Two types of motives have driven this transformation. On the one hand, there was the need to improve housing conditions, that is, to rectify the inequities and inefficiencies that developed under socialist control. On the other hand, there was the need to stop the huge financial hemorrhage that housing represented in government expenditures. This motive was espoused by national governments, but even more forcefully by outside financial and technical aid organizations such as the World Bank and U.S. Agency for International Development.